2012/12/04 Riverside, County CFD Scott Rd 05-8 COUNTY OF RIVERSIDE
CITY OF MENIFEE
COMMUNITY FACILITIES DISTRICT NO. 05-8 (SCOTT ROAD CFD)
IMPROVEMENT CREDIT AGREEMENT
TRANSPORTATION UNIFORM MITIGATION FEE PROGRAM
l�� This IMPROVEMENT CREDIT AGREEMENT (this "Agreement") is entered into this
`'i'f V�.-day of 2012 by and between the County of Riverside (the
"County"), City of Menifee (the "City) and Beazer Homes Holdings Corporation, a Delaware
corporation (the "Developer"). The County, City and Developer are sometimes hereinafter
referred to individually as"Party"and collectively as"Parties".
RECITALS
WHEREAS,the Developer owns Tract No. 28206-2 (the"Tract"), for which a Final Map
was recorded on January 12, 2010, as Instrument No. 2010-0011677 and is located within the
City of Menifee, Riverside County, California, as shown by Exhibit "A," attached hereto and
incorporated herein by this reference; and
WHEREAS, the Tract is Phase No. 2 of approved, phased Tract Map No. 28206 (the
"Project"), which was approved by the County prior to the City's incorporation, that was
conditioned by the County to participdte in some form of funding mechanism, such as a
Community Facilities District, that would provide a means of financing the construction of the
following public facilities (the "Scott Road Improvements") that had been determined by the
Board of Supervisors to be necessary to mitigate the transportation and circulation needs that
would result from the development of the Project:
(i) The widening of Scott Road to four lanes between
Antelope Road and Briggs Road including all associated
appurtenances and rights-of-way;
(ii) The widening of the interchange at Interstate 215 and Scott
Road and the modification of the ramps to meet future
traffic demands including all associated appurtenances and
rights-of-way;
(iii) The full width improvement to Scott Road from Antelope
Road to State Route 79 including all associated
appurtenances and rights-of-way, bringing into
conformance said facility with the Transportation Uniform
Mitigation Fee Program ("TUMF"), as amended from time
to time (collectively,the"Scott Road Improvements"); and
WHEREAS, the Riverside County Board of Supervisors (the "Board"), on April 4, 2006,
adopted Resolution No. 2006-092 establishing Community Facilities District No. 05-8 (Scott
Road) of the County of Riverside ("Scott Road CFD") and authorizing the levy of a special tax
to pay for the construction or financing of the Scott Road Improvements and Resolution No.
Scott Rd CFD -Improvement Credit Agreement 1
TR 28206-2
Beazer Homes Holdings Corporation
nPr, n i gniq `�. I
CFD 2006-02 determining the need to incur bonded indebtedness in an aggregate principal
amount not to exceed $100,000,000 to finance the Scott Road Improvements and called a special
election for April 18, 2006, for the qualified electors of the Scott Road CFD to consider
propositions dealing with the levy of the special tax and the incurrence of bonded indebtedness;
and
WHEREAS, the Board of Supervisors, on April 25, 2006, canvassed the results of the
special election and determined that the qualified electors voted and approved the propositions
by more than two-thirds of the votes cast and caused a Notice of Special Tax Lien for the Scott
Road CFD to be recorded on May 4, 2006; and
WHEREAS, the County/City, by the adoption of Ordinance No. 824, as amended from
time to time, established the Transportation Uniform Mitigation Fee Program which requires a
developer to pay the fee (the "TUMF") which is set by said Ordinance and which is to be paid as
a condition of receiving certification allowing for the occupancy of a residential or commercial
structure; the TUMF is intended to represent a new structure's fair share of the estimated costs to
construct those transportation improvements needed to mitigate the traffic impacts and burdens
placed on the Regional System of Highways and Arterials ("RSHA") generated by a residential
or commercial development and determined necessary to protect the safety, health and welfare of
persons traveling to and from the such residential or commercial development using the RSHA;
and
WHEREAS, the Scott Road Improvements have been identified as part of the RSHA and
to be among those facilities whose construction is to be financed by the collection of the TUMF;
and
WHEREAS, the Rate and Method of Apportionment of Special Tax for the Scott Road
CFD (the "RMA") that has been approved by the Board of Supervisors and the qualified electors
of the Scott Road CFD is intended to reflect the amount of the TUMF approved for any given
fiscal year, beginning July 1, 2005, with the intent that each unit within a single-family
residential tract and each unit within a multifamily residential development will receive a credit
against the TUMF in an amount set forth in this Agreement; and
WHEREAS, the Scott Road Improvements are to be constructed by the Riverside County
Transportation Department as the lead agency from the proceeds of special taxes levied or the
proceeds of special tax bonds issued by the Scott Road CFD; and
WHEREAS, on October 1, 2008, the City of Menifee incorporated and the Tract and
improvements are included within its boundaries; and
WHEREAS, the City reduced the TUMF during calendar year 2010 but that reduction
ended as of December 31, 2010; and
WHEREAS, the County, City and the Developer now desire to enter into this Agreement
to provide a means by which Developer's participation in the Scott Road CFD is offset against
Developer's obligation to pay the applicable TUMF (the "TUMF Credit") for the Tract in
Scott Rd CFD -Unprovement Credit Agreement 2
rR 28206-2
Beazer Humes Holdings Corporation
accordance with the TUMF administrative plan; and
WHEREAS, the Tract is located within the boundaries of the Scott Road CFD, as shown
on the Boundary Map of the Scott Road CFD recorded as Instrument No. 2006-0167553 on
March 8, 2006, or within territory that has been annexed to the Scott Road CFD;
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable
consideration, the adequacy of which is hereby acknowledged, Developer, County, and City
hereby agree as follows:
TERMS
1.0 Incorporation of Recitals. The Parties hereby affirm the facts set forth in the
Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
2.0 Construction of Improvements. County/City shall be responsible for constructing
the Scott Road Improvements.
3.0 TUMF Credit for Single-Family Residential Devel-opment. The prior owner of the
Tract obtained the first building permit for a "production unit" located within the Tract on
January 25, 2010. The TUMF in effect on July 1 St preceding the issue date of said first building
permit was $9,812 per single-family residential unit. Each single-family residential unit within
the Tract will be eligible to receive a TUMF credit up to a maximum amount, which is equal to
the TUMF in effect on said July I" (the "Maximum TUMF Credit"). The actual amount of the
TUMF credit applied will be equal to the TUMF in effect on the date the Developer secures a
certificate of occupancy for each single-family residential unit up to the Maximum TUMF credit.
At no time shall the actual TUMF credit amount exceed 100% of the TUMF charged for each
said unit. The Developer understands that the TUMF is adjusted annually, and the Developer
agrees that should the TUMF in effect on the date a certificate of occupancy is secured for each
single-family residential unit is greater than the Maximum TUMF Credit for said unit, the
Developer shall pay the differential amount in cash prior to securing the certificate of occupancy
for said unit.
4.0 Miscellaneous.
4.1 Assignment. The Developer may assign all or a portion of its rights
pursuant to this Agreement to a purchaser of one or more lots within the Tract (an
"Assignment"). The Developer and such purchaser and assignee (the "Assignee") shall provide
to the County/City such reasonable proof as it may require that the Assignee is the purchaser of
said lots within the Tract. Any assignment pursuant to this paragraph 4.1 shall not be effective
unless and until the Developer and Assignee have executed an assignment agreement with the
County/City in a form reasonably acceptable to County/City, whereby the Developer and the
Assignee agree, except as may be otherwise specifically provided therein, to the following: (i)
the Assignee shall receive all or a portion of the Developer's rights pursuant to this Agreement,
including credits up to the Maximum TUiv1F Credit for each single-family residential unit
developed on a lot within the Tract or for each multifamily residential unit developed on a parcel
Scott Rd CFD -Improvement Credit Agreement
TR 28206-2
Beazer Flomcs Holdings Corporation
ri _
within the Tract purchased by the Assignee pursuant to this Agreement and (ii) the Assignee
shall be bound by all applicable provisions of this Agreement.
4.2 Relationship between the Parties. The Parties hereby mutually agree that
this Agreement shall not operate to create the relationship of partnership,joint venture, or agency
between the County, City and the Developer.
4.3 Indemnification. Developer agrees to protect, indemnify, defend and hold
the Community Facilities District, the County and City, and their respective directors, officers,
Legislative Body, Board of Supervisors, elected officials, employees, representatives and agents
(the "Indemnified Parties"), and each of them, harmless from and against any and all claims,
including, but not limited to, third-party claims, and against any and all losses, liabilities,
expenses, suits, actions, decrees,judgments, awards, reasonable attorney's fees, and court costs
which the Indemnified Parties, or any combination thereof, may suffer or which may be sought
against or recovered or obtained from the Indemnified Parties, or any combination thereof, as a
result of or by reason of or arising out of or in consequence of (a) the approval of this
Agreement, (b) the awarding of credit pursuant to or on account of this Agreement, and/or(c) the
untruth or inaccuracy of any representation or warranty made by said Developer in this
Agreement. If said Developer fails to do so, the Indemnified Parties, or each of them, shall have
the right, but not the obligation, to defend the same and charge all of the direct or incidental costs
of such defense, including reasonable attorney's fees or court costs, to and recover the same from
said Developer. The provisions of this Section shall survive the termination discharge or other
termination of this Agreement.
4.4 Warranty as to Property Ownership; Authority to Enter Agreement. The
Developer hereby warrants that it owns fee title to the Tract and that it has the legal capacity to
enter into this Agreement. Both Parties warrant that the individual(s) who have signed this
Agreement on behalf of each Party has the legal power, right, and authority to enter into this
Agreement and each individual signing this Agreement has been duly authorized to do so on
behalf of said Party.
4.5 Prohibited Interests. The Developer represents and warrants that it has not
employed or retained any company or person, other than a bona fide employee working solely
for the Developer, or any parent or related entity of the Developer, to solicit or secure this
Agreement. The Developer also warrants that it has not paid or agreed to pay any company or
person, other than a bona fide employee working solely for the Developer, any fee, commission,
percentage, brokerage fee, gift, or other consideration contingent upon the making of this
Agreement. For breach of this representation and warranty, the County/City shall have the right
to rescind this Agreement without liability.
4.6 Notices. All notices, demands, invoices, and written communications
shall be in writing and delivered to the following addresses or such other addresses as the Parties
may designate by written notice:
Scott Rd CFD -Improvement Credit Agreement 4
FR 28206
Beazer Homes Holdings Corporation
To County: Riverside County Transportation Department
Attention: Juan C. Perez
4080 Lemon Street, 8`h Floor
Riverside, CA 92501
Phone No. (951) 955-6740
Fax No. (951) 955-3198
To City: City of Menifee
Attention: Don Allison
29714 Haun Road
Menifee, CA 92586
Phone No. (951) 672-6777
Fax No. (951) 679-3843
To Developer: Beazer Homes Holdings Corporation
Attention: Darius Fatakia
1800 Imperial Highway, Suite 200
Brea, CA 92821
Phone No. (714) 672-7024
Fax No. (714) 917-4881
Depending upon the method of transmittal, notice shall be deemed received as follows: by
facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail
first class postage prepaid, as of 72 hours after deposit in the U.S. Mail.
4.7 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate, or convenient to attain the purposes of this Agreement.
4.8 Construction; References; Captions. It is agreed that the Parties and their
agents, including legal counsel, have participated in the preparation of this Agreement, the
language of this Agreement shall be construed simply, according to its fair meaning, and that any
ambiguity shall not be construed against either Party as the Party responsible for drafting this
Agreement. Any term referencing time, days, or period for performance shall be deemed
calendar days and not business days. All references to the Developer include all personnel,
employees, and agents of the Developer, except as otherwise specified in this Agreement. All
references to the County and City include its elected officials, Board of Supervisors, officers,
employees, and agents except as otherwise specified in this Agreement. The captions of the
various articles and paragraphs are for convenience and ease of reference only, and do not
define, limit, augment, or describe the scope, content, or intent of this Agreement.
4.9 Amendment; Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by all Parties.
4.10 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
Scott Rd CFD -Improvement Credit Agreement 5
TR 28206-2
Beazer Homes Holdings Corporation
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual right by custom, estoppel, or otherwise.
4.11 Binding Effect. Each and all of the covenants and conditions shall be
binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal
representatives, or assigns. This section shall not be construed as an authorization for any Party
to assign any right or obligation.
4.12 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
4.13 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
4.14 Consent to Jurisdiction and Venue. This Agreement shall be construed in
accordance with and governed by the laws of the State of California. Any legal action or
proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the
Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the
appropriate California State Court in the County of Riverside, California. Each Party waives the
benefit of any provision of state or federal law providing for a change of venue to any other court
or jurisdiction including, without limitation, a change of venue based on the fact that a
governmental entity is a party to the action or proceeding, or that a federal right or question is
involved or alleged to be involved in the action or proceeding. Without limiting the generality of
the foregoing waiver, the Developer expressly waives any right to have venue transferred
pursuant to California Code of Civil Procedure Section 394.
4.15 Time is of the Essence. Time is of the essence in this Agreement, and the
Parties agree to execute all documents and proceed with due diligence to complete all covenants
and conditions.
4.16 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original and which collectively shall constitute one instrument.
4.17 Entire Agreement. This Agreement contains the entire agreement between
County, City and Developer with respect to matters specifically addressed herein and supersedes
any prior oral or written statements or agreements between County, City and Developer with
respect to such matters.
(Signatures of Parties on Next Page]
Scott Rd CFD -Improvement Credit Agreement 6
TR 28206-2
Re;ver Homes Holdings Corporation
IN WITNESS WHEREOF,the Parties hereto have executed this Agreement as of the
day and year first above written.
CITY OF MENIFEE DEVELOPER
Passed At *seday of 20� Beazer Homes Holding Corporation, a Delaware
Corporation
By: v By:
Jonver, Mayor'-- Darius Fatalda,P.E.
Vice President-Development
Printed Name Orange Division
ATTEST:
Title
By: 1��`�1 ,lo-otal, By:
Kathy'Bennett, City Clerk
Printed Name
APPROVED S O FORM:
C Title
By:
Josep)�� letcher, City orney
Scott Rd CID -Improvement Credit Agreement 7
TR 28206-2
Beazer Homes Holdings Corporation
ACKNOWLEDGMENT
State of California
County of_C)(QIYAe
On 21-6)20tj before me, A tJ T�Ot!1 7L iG ,
,(he Ye insert name and title of the officer)
personally appeared _ YL Qv-1
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
.�
WITNESS my hand and official seal. AMY BARUCH
Commieslon 19349N
o Notary Public-Californla
i Orange County
Signature I M Comm.Ex Ires Ma 5,2015
(Seal)
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year
first above written.
COUNTY OF RIVERSIDE
RECOMME DED FOR APPROVAL:
By: Date: 1 Ac —�
Juan t. Perez
Director, Transportation and Land Management Agency
APPROVED AS TO FORM:
By: Date:
County Counsel
APPROVAL BY TH O TY BOARD OF SUPERVISORS:
DEC 4 4 2012
A
nrd
E
Chai an, Cou y BoSupervisors
ATTEST:
Kecia Harper-Ihem
Clerk of the Board
Date: DEC 4 2(112
Deputy
Clerk of the Board (SEAL)
Scott Rd CFD -Improvement Credit Agreement g
TR 28206-2
Beazer Homes Holdings Corporation
DEC -0 4 201z ��3I
EXHIBIT "A"
FINAL TRACT MAP AND VICINITY MAP
[ATTACHED BEHIND THIS PAGE]
Scott Rd CFD -Improvement Credit Agreement 9
TR 28206-2
Beazer Homes Holdings Corporation
EXHIBIT"A"
VICINITY MAP
TRACT NO. 28206-2
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SEE SHEET S
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SC.r! I•.k'
NO rE.
SEE SHEET 3 FOR SURVEYOR'S NOTES, BASIS
OF BEARINGS, AND EASEMENT NOTES.
SUBMITTAL TO THE BOARD OF SUPERVISORS
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA
FROM: TLMA- Transportation Department SUBMITTAL DATE:
November 14, 2012
SUBJECT: TUMF Improvement Credit Agreement (Scott Road CFD 05-8) between the
County of Riverside, City of Menifee and Beazer Homes Holdings Corporation for
Tract 28206-2.
RECOMMENDED MOTION: That the Board of Supervisors:
1) Approve the subject Agreement by and between the County of Riverside (County), City
of Menifee (City) and Beazer Homes Holdings Corporation (Developer); and
2) Authorize the Chairman to execute the same.
`= BACKGROUND: The Developer's tract is located within the boundaries of Community
w Facilities District No. 05-8 (Scott Road CFD), which is administered by the County, and for
J A3 Q a which the tract was conditioned to participate in. However, with the incorporation of the City of
w �o
z ,3 t
:D r
o zI o
r o Juan C. Perez
z Director, Transportation and Land Management Agency
D Q�
U w
v (Continued.On Attached Page)
L IfCurrent F.Y.Total Cost: $ 0 In Current Year Budget: N/A
0 FINANCIAL Current F.Y. Net County Cost: $ 0 Budget Adjustment: N/A
DATA Annual Net County Cost: $ 0 For Fiscal Year: N/A
a_ w
J SOURCE_ OF FUNDS: N/A Positions To Be ❑
o Deleted Per A-30
o >_ There are no General Funds used in this project. Requires 4/5 Vote ❑
C.E.O. RECOMMENDATION:
APPROVE:
ina Gral ide
Count Executive Office Signature
U_ U
O O
MINUTES OF THE BOARD OF SUPERVISORS
® �R_
On motion of Supervisor Stone, seconded by Supervisor Ashley and duly carried, IT
a) N WAS ORDERED that the above matter is approved as recommended.
C C
C C
O O
U U
❑ ❑ Ayes: Buster, Stone, Benoit and Ashley
Nays: None Kecia Harper-Them
Absent: Tavaglione Cler f the Bo rd
E w Date: December 4, 2012 By:
s
° xc: TraKsp. + epu y
U U
N N
X
_Q W
o a Prev. Agn. Ref. District: 3/5 Agenda Number:
ATTACHMENTS FILE D3 31
Form 11 (Rev 0712007) WITH i THIE CLER;"' . .,_-
The Honorable Board of Supervisors
RE: TUMF Improvement Credit Agreement (Scott Road CFD 05-8) between the County of
Riverside, City of Menifee and Beazer Homes Holdings Corporation for Tract 28206-2.
November 14, 2012
Page 2 of 2
Menifee, the geographical boundaries of the Scott Road CFD now fall primarily within the City,
including this Tract.
The Scott Road CFD is a funding mechanism that provides a means to finance the Scott Road
Improvements, which includes widening of Scott Road between Antelope Road and Briggs
Road and improvements to the 1-215 Interchange. The Scott Road Improvements are planned
to be constructed by the Riverside County Transportation Department from the proceeds of
special taxes levied or the proceeds of bond sales by the Scott Road CFD.
In addition, the Scott Road Improvements have been identified as part of the Transportation
Uniform Mitigation Fee (TUMF) Regional System of Highways and Arterials (RSHA), and to be
among those facilities whose construction is to be financed in part by the collection of TUMF.
The TUMF Program requires a developer to pay TUMF, which represents a developer's fair
share of the estimated costs to construct transportation improvements needed to mitigate the
traffic impacts and burdens generated by a developer's project.
The County, City and Developer now desire to enter into this agreement to provide a means by
which the Developer's participation in the Scott Road CFD is offset against Developer's
obligation to pay the applicable TUMF for the Tract. Each single-family residential unit within
the Tract will be eligible to receive a credit against the TUMF in an amount set forth in this
Agreement and that will be charged by the City at issuance of a certificate of occupancy for
each unit.
Project Number: A50256